Wednesday, January 10, 2018

When Should Federalism Matter to the Exercise of Prosecutorial Discretion?

by Michael Dorf
In my latest Verdict column, I examine three grounds for opposing the Sessions/Trump reversal of the Obama administration marijuana policy: (1) It betrays promises made by both Sessions and Trump; (2) it's bad policy; and (3) it betrays principles of federalism. I agree with points (1) and (2), but I register considerable skepticism about (3). To my mind, the federalism objection is parasitic on the policy objection. If one thought that some federal law were important--a law restricting machine gun ownership, say, or, per my example in the column, a civil rights law targeting state and local government complicity in racial violence--then the fact that the state did not have duplicative laws would not count as a reason for federal forbearance. Indeed, we might think that the absence of state law counts as a special reason for vigorous federal enforcement.

Here I want to sketch the boundaries of these principles. Does state policy ever justify federal forbearance? And if so, why doesn't it justify forbearance with respect to federal marijuana enforcement?
In the column, I quote with approval a famous 1940 speech by then-Attorney General Robert Jackson allowing that the exercise of federal prosecutorial discretion ought to be sensitive to "local sentiment and opinion." I say that such sensitivity should not extend to such matters as hostility to civil rights, but I don't deny that there are cases in which it would justify federal forbearance.

The death penalty strikes me as an example. Other things being equal, if a state has abolished capital punishment, then the DOJ ought not seek the death penalty for someone charged with a federal offense that carries it when the offense was committed in that state. This principle would be most applicable where the harm the defendant caused was felt entirely or mostly within a single state.

There will be tough borderline cases. The case of Dzokhar Tsarnaev, the surviving Boston Marathon bomber, illustrates the difficulty of drawing the line. Massachusetts has no death penalty. Had Tsarnaev been charged with murder and attempted murder in state court, he could not have been sentenced to death, but because he was charged in federal court, he could be and he was.

Was that the right call? I don't mean that question in some absolute sense. If one opposes the death penalty categorically, as I do, then seeking the death penalty is never appropriate. What I mean is this: Was charging Tsarnaev with a capital offense the right call from the perspective of federalism? Given that there is a federal death penalty that will sometimes be sought, was it appropriate to seek it for Tsarnaev?

We can say that seeking the death penalty in Tsarnaev's case was less clearly the right course than seeking the death penalty in the case of Timothy McVeigh, because, at the time of McVeigh's crime, as now, Oklahoma had capital punishment. So the death penalty for McVeigh wasn't going to be a federal intrusion on Oklahoma's values in the way that the death penalty for Tsarnaev arguably is an intrusion on the values of Massachusetts.

I phrase these conclusions as tentatively as I do because in just about any case in which a federal crime can be charged--and especially when the federal crime is terrorism--there will be national implications, not just state implications. Yes, the Tsarnaev brothers committed their crimes in Massachusetts, but in some sense that was just happenstance. The kind of crime they committed might have occurred anywhere large numbers of people gathered.

Nonetheless, I don't want to go all the way in the direction in which I gesture in the column. That is, I don't want to say that whenever there is a valid federal interest in some law (whether about the substance of the law, the penalty, or whatever) there is necessarily a sufficient federal interest to set aside any contrary state policy. I do think Jackson's principle of sensitivity to local sentiment and opinion will sometimes justify federal forbearance. And I think that at least some instances of the federal death penalty will fall into that category.

How should we think about the problem more generally? Obscenity law could be a useful comparison. Under Miller v. California, whether sexually explicit material is legally obscene must be judged by "community standards." In the Internet era, that test has resulted in less protection than in the past. When Miller was decided in 1973, a purveyor of sexual magazines could limit distribution to locales with permissive community standards (for example, New York City, San Francisco, Los Angeles, and other urban centers). Today, however, if such material is accessible in places with stricter standards, it may be deemed obscene. But putting that complication aside, we might think of the Miller test as it used to function as a kind of model. There is a single federal law--the First Amendment allowance for obscenity prosecutions under the Miller test--but the meaning of that federal law varies. So too we might think that there are circumstances in which it makes sense to have a national law--one allowing capital punishment for the most heinous federal crimes, say--but that its application (if not its meaning) should vary based on the location of its application.

One might think something like that about marijuana, but it's hard to see how it would work in practice. If there is a national interest in proscribing marijuana, it takes one of two forms. First, one might think that the national prohibition allows states that forbid marijuana to avoid being flooded with marijuana from neighboring states that don't. Such a rationale might justify enforcement of the federal marijuana law even in states that have legalized.

But note that even under the Obama policy, the feds did not forbear marijuana enforcement where they worried about spillover of that sort. So the Sessions decision to enforce the marijuana law in states that have legalized even when there is little risk of spillover must rest on something else.

That something else is plain enough: It's the national decision--by Congress and by Sessions himself--to treat marijuana as a grave danger. That's a stupid policy judgment, but it doesn't seem to be more stupid with respect to states that have legalized marijuana than with respect to states that haven't.

Perhaps a clearer way to put the point is that, if one thinks that it makes sense to have a federal marijuana law at all, then one will likely regard it as something like federal civil rights law. I.e., one will think that the absence of state law forbidding marijuana is not itself a reason for federal forbearance and may even be a reason for stepped-up federal enforcement efforts.

So, perversely, the very stupidity of the federal marijuana prohibition is a big part of what makes the federalism argument for forbearance of federal enforcement with respect to legal-marijuana states weak.

7 comments:

If a second constitutional convention were to be held, presumably it would include a focus on federalism, perhaps seeking more definition than in the Constitution presently. Mike's post suggests some things to think about if such a convention were to take place. I imagine that other examples of federalism beyond the death penalty, civil rights and marijuana might surface during such a convention. Or maybe such a convention might question the federalism that has already developed under the Constitution. Our Constitution continues to raise doubts from time to time on its meanings. Imagine what the Constitution might look like if Article V were not so restrictive. But with respect to marijuana, consider the Prohibition A and its Repeal A, that might be accomplished by Congress without amending the Constitution.

There is a constitutional argument made that there is a 8A blockade on the federal government applying the death penalty [which I too oppose on constitutional and other grounds] when state law prohibits it.

I find the argument weak -- if there is a federal power in place that provides a means, there is not some 8A or 10A barrier. OTOH, I agree as a general matter of federalism it should not be done except in cases where the national interest is very strong. So, e.g., some interstate commerce hook can warrant any number of federal penalties. But, it generally should not be enough in this case.

The same does apply here -- if Gonzalez v. Raich etc. is good law [and on Commerce Clause grounds, probably is], there is a federal power. I put aside reasonable arguments that there are other liberty interests at stake too. But, the interest is weak, so local discretion should be honored. If the federal ban in place was the sale and possession of heroin or meth, e.g., the case would be harder.

A lot of the “states’ rights” discussion centers on rhetorical hypocrisy – i.e., Republicans are publicly in support of states’ rights, until they’re not.

Republican presidents will tout states’ rights whenever they weaken regulatory, education, or environmental standards (using their enforcement discretion). Or when they de-prioritize labor law or voting rights enforcement. But in other matters – drug prosecutions, the sanctuary city stuff, Terry Schiavo scenarios – they expect muscular (federal) executive involvement. Another example is the “selling insurance across state lines” notion, which obliterates state control over insurance regulation (though this one is less about executive discretion).

So although there really isn’t anything compelling as a constitutional matter, I do think there is a valid political discussion amid all this. It represents a chance to call the entire states’ rights mantra what it truly is: case-by-case opportunism (hiding behind something that sounds lofty when cherry-picking).

An honest accounting would move past "neutral" principles, and if one wants to be generous, we can suppose many convince themselves they are in place, and realize we often are talking about policy disputes.

The same applies to many who accuse the other side of "make stuff up" generally when interpreting the Constitution, when the ultimate dispute is deep but honest disputes over proper constitutional policy.

Obviously, I like the point Mike makes about the death penalty but I would go (have gone) further and argue that it is a matter of constitutional constraint and not mere prosecutorial discretion. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=877197; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1875868; and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1909104.